Argumento de The Southeastern Reporter Volume 45
This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1904 Excerpt: ... at the time. If the defendant had alleged that the Intestate furnished more than was required by the contract, and undter such circumstances as to Imply a promise of the plaintiff to pay for the excess, a different question would have been presented. As the case now stands, the defendant is only entitled, if he sustains the averments of the answer by proof, to have the matters therein set forth considered by the jury in passing upon the plaintiff's claim, and for the purpose of defeating his recovery. There was error in the ruling of the court upon the issues. New trial. PENNY v. ATLANTIC COAST LINE R. CO. (Supreme Court of North Carolina. Oct. 27, 1903.) CARRIERS--PASSENGERS--INJURIES--NEGLIGENCE--VARIANCE. 1. A railroad company owes to a passenger not only the duty of protecting him from the assaults of others, but also owes to him the duty of warning him, when in the act of alighting, of the dangers arising from persons armed with pistols engaging in an altercation immediately after having left the train at a station. 2. The variance between the allegations of the complaint in an action against a railroad company for injuries sustained, to the effect that L. was the conductor of the train, and that through his negligence plaintiff was injured, and the evidence which showed that C. was the conductor, was immaterial, where the evidence disclosed negligence on defendant's part, and the evidence was not objected to by the company. Appeal from Superior Court, New Hanover County; Peebles, Judge. Action by B. F. Penny against the Atlantic Coast Line Railroad Company. From a judgment directing a nonsuit, plaintiff appeals. Reversed. E. K. Bryan and Bellamy & Bellamy, for appellant Junius Davis, John D. Bellamy, and Rountree & Carr, for appellee. MONTGOM...0
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